GROHS v. LANIGAN et al
OPINION FILED. Signed by Judge Jerome B. Simandle on 7/19/17. (js)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
No. 15-8184 (JBS-JS)
GARY M. LANIGAN, et al.,
Steven Grohs, Plaintiff Pro Se
Special Treatment Unit, South
PO Box 905
Avenel, New Jersey 07001-0905
SIMANDLE, District Judge:
Plaintiff Steven Grohs’ (“Plaintiff”) submitted a civil
rights complaint on November 15, 2015. Complaint, Docket Entry
1. After reviewing the complaint pursuant to 28 U.S.C. § 1915,
the Court dismissed certain claims with prejudice and granted
leave to move to amend other claims on July 14, 2016. Opinion
and Order, Docket Entries 5 and 6. Plaintiff submitted a
proposed amended civil rights complaint, which the Court
construes as a motion for leave to amend. Motion to Amend,
Docket Entry 9. For the reasons stated below, the motion is
denied, and the complaint shall be dismissed with prejudice.
Plaintiff filed a complaint against the New Jersey
Department of Corrections (“DOC”), DOC Commissioner Gary
Lanigan, South Woods State Prison (“SWSP”) Administrator John
Cunningham, Officers John Does 1-45, SWSP Officer Spencer, and
Former SWSP Administrator Karen Balicki (collectively
“Defendants”) alleging violations of his Fifth, Eighth, and
Fourteenth Amendment rights, as well as claims under the New
Jersey Constitution and administrative code. See generally
The complaint alleged that Defendants lost Plaintiff’s
personal property when he was transferred from SWSP to the
Special Treatment Unit (“STU”) in order to begin his temporary
civil commitment. Id. ¶¶ 6(1)-(3). He specifically alleged
Defendants failed to follow the established procedures for
property inventory and transfer, resulting in the negligent loss
of his property. Id. His administrative remedy was denied by
Administrator Cunningham, and the Appellate Division affirmed
the denial of his property claim. Id. ¶ 6(32)-(33); Grohs v.
N.J. Dep't of Corr., No. A-4913-12, 2014 WL 8764096 (N.J. Super.
Ct. App. Div. May 4, 2015), certif. denied 124 A.3d 239 (N.J.
Plaintiff submitted his complaint for mailing on November
11, 2015. The Court dismissed with prejudice the claims for
monetary damages against Defendants in their official capacities
and against the DOC as barred by the Eleventh Amendment. It
further dismissed with prejudice his Due Process claim for
deprivation of property as he could not bring a due process
claims for negligent deprivations of property by prison
officials and there was an adequate post-deprivation remedy
available to him. July 14, 2016 Opinion at 8. Other claims
brought in the original complaint were dismissed without
prejudice for failure to state a claim. The Court granted leave
to move to amend these claims, but noted that Plaintiff would
have to address the statute of limitations as it was clear from
the face of the complaint that more than two years had passed
between the alleged constitutional violations and filing of the
complaint. Id. at 11-14.
The facts alleged in the proposed amended complaint are
generally the same as those alleged in the original complaint.
Plaintiff states he began the process of transferring from SWSP
“[A] court may take judicial notice of a prior judicial
opinion.” McTernan v. City of York, 577 F.3d 521, 525 (3d Cir.
to the STU in order to begin his temporary civil commitment on
March 3, 2011. Motion to Amend ¶¶ 5.4-5.5 at 7. The SWSP
Administrator at that time, Defendant Balicki, directed Officers
John Does 1-5 to place Plaintiff in administrative segregation
pending his transfer. Id. After Plaintiff was removed from his
cell, Officer Spencer inventoried Plaintiff's personal property
in the cell. Id. ¶ 5.9 at 8. Plaintiff alleges SWSP’s custom of
using inmates besides the property owner to move personal
property out of cells commonly results in theft, colloquially
known as a “packing fee.” Id. ¶ 5.7 & n.2 at 7-8. “While
Plaintiff was confined to SWSP and before his transfer to the
STU, Plaintiff was not provided with a copy of an inventory
sheet itemizing the property inventoried.” Id. ¶ 5.9 at 8. He
alleges Officer Spencer enabled other inmates to have
unsupervised access to Plaintiff’s unsecured personal property,
resulting in another inmate defacing some of Plaintiff’s
photographs and the theft of Plaintiff’s property. Id. ¶¶ 5.125.14 at 9-10. He was transported to the STU without any of his
property. Id. ¶ 5.15 at 10-11.
Upon arrival at the STU, Plaintiff placed in a cell for two
days with only a mattress, bed linen, hand soap, and toilet
paper. Id. ¶ 5.16 at 11. Plaintiff did not have any clothing
other than the clothes he arrived with until his property
arrived on or about March 21, 2011. Id. ¶ 5.18 at 11-12. He
received three large boxes and a copy of an inventory sheet, but
it “did not list any property that was left in Plaintiff’s
assigned cell at SWSP and which had been stolen at SWSP.” Id. ¶
5.18 at 11-12. He further alleges his television arrived
damaged. Id. ¶ 5.19 at 12. Plaintiff alleges he learned on or
about January 7, 20162 that another STU resident had been
permitted to pack his own belongings before leaving state
prison. Id. ¶¶ 5.24, 5.26 at 13-14.
Plaintiff now alleges the loss of his property constitutes
cruel and unusual punishment under the Eighth Amendment because
Defendants failed to protect his property from being stolen. He
asserts Defendants Lanigan and Balicki are liable under a
supervisory theory. He also argues Defendants violated the Equal
Protection Clause, the Ninth Amendment, and the New Jersey
III. STANDARD OF REVIEW
Rule 15(a) of the Federal Rules of Civil Procedure permits a
party to amend a pleading once as a matter of course twenty-one
(21) days after serving the pleading or twenty-one (21) days “after
a responsive pleading or service of a motion under Rule 12(b),
As Plaintiff’s original complaint included an affidavit from
the resident in question dated October 31, 2015, the Court
presumes the 2016 date is a typo and Plaintiff meant he first
learned of the different treatment on January 7, 2015. Complaint
(e), or (f), whichever is earlier.” Fed. R. Civ. P. 15(a)(1)(A)(B).
A court may deny leave to amend a pleading where it finds:
(1) undue delay; (2) undue prejudice to the non-moving party;
(3) bad faith or dilatory motive; or (4) futility of amendment.
Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000). “‘Futility'
means that the complaint, as amended, would fail to state a
claim upon which relief could be granted.” Id. The Court applies
the same standard of legal sufficiency as applies under Rule
In an attempt to circumvent the Court’s dismissal of the
Fourteenth Amendment deprivation of property claims, Plaintiff
reframes them into Eighth Amendment claims. He also argues being
forced to eat with his fingers and hand-wash one pair of
clothing violated the Ninth Amendment,3 and that his Equal
Protection rights were violated.
Plaintiff asserts his cause of action arises under the Ninth
Amendment, which states “[t]he enumeration in the Constitution,
of certain rights, shall not be construed to deny or disparage
others retained by the people.” U.S. CONST. amend. IX. See Motion
to Amend ¶¶ 4.79-88 at 37-38. “[T]he Ninth Amendment does not
independently provide a source of individual constitutional
rights.” Perry v. Lackawanna Cty. Children & Youth Servs., 345
F. App'x 723, 726 (3d Cir. 2009); see also Nicolette v. Caruso,
315 F. Supp. 2d 710, 718 (W.D. Pa. 2003) (“[S]ection 1983 civil
rights claims premised on the Ninth Amendment must fail because
there are no constitutional rights secured by that amendment.”
(internal quotation marks omitted)). The Court construes this
Assuming arguendo such a “failure to protect property”
claim exists, Plaintiff has not addressed the statute of
limitations problem noted by the Court in its prior opinion. The
statute of limitations on civil rights claims is governed by New
Jersey's two-year limitations period for personal injury.4 See
Wilson v. Garcia, 471 U.S. 261, 276 (1985); Dique v. N.J. State
Police, 603 F.3d 181, 185 (3d Cir. 2010). The date that a cause
of action under § 1983 accrues, however, is a matter of federal
law. Wallace v. Kato, 549 U.S. 384, 388 (2007); Montanez v.
Sec'y Pa. Dep't of Corr., 773 F.3d 472, 480 (3d Cir. 2014).
“Under federal law, a cause of action accrues when the
plaintiff knew or should have known of the injury upon which the
action is based.” Montanez, 773 F.3d at 480 (internal quotation
marks omitted). At the latest, Plaintiff’s claims accrued on
March 21, 2011 when he received his property at the STU. Motion
to Amend ¶ 5.18 at 11-12. Plaintiff was aware of any missing or
damaged property, the conditions he allegedly endured up until
claim as being brought pursuant to the Fourteenth Amendment as
allegations of due process violations for “inhumane conditions”
are appropriately considered under the Fourteenth Amendment. See
Bell v. Wolfish, 441 U.S. 520, 535 (1979).
4 “Although the running of the statute of limitations is
ordinarily an affirmative defense, where that defense is obvious
from the face of the complaint and no development of the record
is necessary, a court may dismiss a time-barred complaint sua
sponte under § 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to
state a claim.” Ostuni v. Wa Wa's Mart, 532 F. App’x 110, 111–12
(3d Cir. 2013) (per curiam).
he received his property, and the fact that Defendants were
involved as of that date. The fact that Plaintiff purportedly
did not learn of the “unequal” treatment until January 2015 does
not set the accrual date because “a claim accrues in a federal
cause of action upon awareness of actual injury, not upon
awareness that this injury constitutes a legal wrong.” Oshiver
v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1386 (3d Cir.
1994); accord Montanez, 773 F.3d at 480 n.4. Plaintiff’s claims
accrued in March 2011, meaning the statute of limitations
expired in March 2013 at the latest.
Plaintiff also is not entitled to any tolling of the
statute of limitations during the time he spent pursuing
administrative remedies with the DOC. Although the Prison
Litigation Reform Act (“PLRA”) requires prisoners to exhaust
administrative remedies before filing a § 1983 claim in federal
court and the statute of limitations is tolled during
exhaustion, Plaintiff was not a “prisoner” within the meaning of
the PLRA at the time his claims accrued or when he filed his
complaint. See 42 U.S.C. § 1997e(a); Ross v. Blake, 136 S. Ct.
1850, 1854–55 (2016); Pearson v. Sec'y Dep't of Corr., 775 F.3d
598, 603 (3d Cir. 2015). Under the PLRA, “the term ‘prisoner’
means any person incarcerated or detained in any facility who is
accused of, convicted of, sentenced for, or adjudicated
delinquent for, violations of criminal law or the terms and
conditions of parole, probation, pretrial release, or
diversionary program.” 42 U.S.C. § 1997e(h). Persons subject to
civil commitment do not meet this definition.5 See Brandt v.
Burns, 441 F. App'x 924, 927 n.4 (3d Cir. 2011).
Since Plaintiff is not a “prisoner” within the meaning of
the PLRA, there was no requirement for him to exhaust
administrative remedies before filing in federal court. See
Pearson, 775 F.3d at 603 n.8 (“[T]he PLRA does not require
former prisoners to exhaust administrative remedies prior to
filing § 1983 suits . . . .”); see also Ahmed v. Dragovich, 297
F.3d 201, 210 (3d Cir. 2002) (noting plaintiff “would have been
free of the strictures of the PLRA” and its exhaustion
requirement if the complaint had been filed after his release
from prison). Because there was no requirement that Plaintiff
exhaust administrative remedies before he filed a complaint in
federal court, he is not entitled to tolling of the statute of
limitations during that time.
Plaintiff also is not entitled to equitable tolling.
Equitable tolling “is only appropriate ‘(1) where the defendant
has actively misled the plaintiff respecting the plaintiff's
cause of action; (2) where the plaintiff in some extraordinary
Plaintiff’s civil commitment is pursuant to the New Jersey
Sexually Violent Predator Act, Motion to Amend ¶ 3.1 at 2,
therefore the tolling provisions of N.J. STAT. ANN. § 2A:14-21 do
way has been prevented from asserting his or her rights; or (3)
where the plaintiff has timely asserted his or her rights
mistakenly in the wrong forum.’” Omar v. Blackman, 590 F. App’x
162, 166 (3d Cir. 2014) (quoting Santos ex rel. Beato v. United
States, 559 F.3d 189, 197 (3d Cir. 2009)). None of these
Plaintiff was clearly aware of the existence of potential
causes of action as he filed an administrative remedy and
pursued it all the way to the New Jersey Supreme Court. Given
the extensive litigating of these claims, Defendants clearly did
not prevent Plaintiff from asserting his claims. Plaintiff also
did not file his claims in the “wrong forum” as the state courts
were an appropriate forum to litigate his property loss claim.
Nothing prevented Plaintiff from filing any “parallel” federal
claims in this court while that action was pending, making
equitable tolling inappropriate. See id. (“Tolling the statute
of limitations to save parallel claims that do not require
exhaustion of administrative remedies would unjustifiably extend
the statute of limitations for those claims.”).
As more than two years passed between the accrual of the
claims and the filing of the federal complaint, Plaintiff’s
complaint is barred by statute of limitations on its face. It
would therefore be futile to permit amendment of the complaint.
As the Court concludes all of the federal claims in the proposed
amended complaint are subject to dismissal, the Court declines
to exercise supplemental jurisdiction over any potential state
law claims. 28 U.S.C. § 1367(c)(3).
For the reasons stated above, the motion to amend is denied
as futile. The complaint is dismissed with prejudice for failure
to state a claim.
An appropriate order follows.
July 19, 2017
s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge
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